Freedom of Speech

Public universities and colleges are required to abide by the First Amendment of the U.S. Constitution[1] which protects your right to free speech and free expression.[2] Most private universities also agree to uphold principles of free speech and expression, and some are required by state laws to uphold those rights.

This means that you can write and talk about issues supporting Palestinian freedom, if you choose to, and that your college cannot restrict what you say because they do not like your message.

Unfortunately, university administrators too often ignore their First Amendment obligations when they face pressure to punish speech critical of Israel’s policies. That’s why it’s a good idea to know your rights to free expression in different situations when you decide to organize and speak out on the issue of justice for Palestine, Palestinian human rights and Palestine/Israel. The law may be different if you are at a private or public university, on or off campus, on the internet, or in a public or private lecture or meeting. This resource addresses the most common situations that Palestine Legal encounters in advising student activists.

Important Laws

Federal and state laws protect your right to freedom of expression. Here’s a basic overview on laws that protect you:

U.S. Constitution: The First Amendment to the U.S. Constitution protects your right to free speech and expression from government interference. (The “government” includes federal, state, municipal and city governments or public officials – and your university or college if it’s public.)

Some State Constitutions and Laws: Your state might have laws that prevent your public or private university from infringing on your right to free speech and expression. California[3] explicitly recognizes such protections and courts in New Jersey,[4] Pennsylvania,[5] Washington[6] and Massachusetts have also ruled that their state constitutions protect free expression at private institutions.

Local Laws or College Policies: If your state doesn’t protect the right to free speech on a private campus, your college still might. Look at your college website, handbook, and other college materials for language promoting a tradition of free speech and exchange of ideas.

Public Colleges vs. Private Colleges

Public College: If you are at a public college or university, you have a First Amendment right to express your opinion on campus.

Private College: If you are at a private college or university you may also have the right to express your opinion on campus. This depends on your state and your university’s policies.

The Basics

Your speech can be impolite.[7]

Your speech can be “controversial.”[8]

Your speech does not have to be “civil.”

You cannot be forced to hold “dialogue sessions” with Israel advocacy groups.

University officials cannot discriminate against you based on the viewpoint of your speech.

University officials can limit speech in limited circumstances, including when it threatens immediate harm or encourages unlawful activity

The First Amendment protects your right to freedom of speech and expression at a public college or university. “Speech” and “expression” include words you speak or write, messages you hold or wear, art you create and street theatre. The First Amendment also prohibits “viewpoint discrimination” – government action (which includes action by public university officials) that burdens or suppresses speech based on viewpoint. This means that if a student or a group is punished because administrators don’t like their message, the university may be held accountable for violating students’ constitutional rights.

Frequently Asked Questions

What should I do if I believe my college or university has violated my rights?

Can I criticize the State of Israel on campus?

Yes. If you are at a public college, the First Amendment gives you the right to criticize Israel, the U.S. or any other country. If you are at a private college, look to state law (California and Massachusetts protect the right to free speech on college campuses, for example) or university policies stating that your college respects the free exchange of ideas. Colleges that prohibit students from talking about world affairs will find it difficult to claim that they are centers for learning and enlightenment.

What if other students or the administration say that criticizing Israel is anti-Semitic?

Allegations that criticism of Israel amounts to anti-Semitism, that is, “hostility toward or discrimination against Jews as a religious, ethnic, or racial group,” are all too common. This allegation aims to deflect from the policies and practices of the Israeli government by mislabeling those who advocate for justice for Palestinians as the offending parties.

Common sense makes clear the distinction between anti-Jewish bias (based on the race, ethnicity or religious identity of Jewish people as individuals or as a group) and criticism of Israeli state practices.

Does the First Amendment protect all speech? Can I talk about boycotting Israel? Can I call Israel an apartheid state?

Stating that you endorse the boycott of Israeli is protected speech. Stating that you believe that Israel is an apartheid state is also protected speech under the First Amendment. The First Amendment protects your right to express your opinion, even if your viewpoint is unpopular or controversial. You may criticize the United States, Israel, the police, or any government or governmental representative. But this right does not extend to defamation, obscenity[9], “true threats”[10] or speech that incites imminent violence or law-breaking.[11] Sometimes speech that students view as a political statement or a joke might be viewed by others as a “true threat.”

Keep in mind that what you say or post on social media can be taken out of context, and may invite the attention of pro-Israel groups, your administration, and even law enforcement. If you are worried that you may get in trouble for what you want to say or have said, call us for advice.

What if pro-Israel attendees react violently to what I or one of my invited speakers say at an event?

Your college can't hold you responsible for the way that counter-demonstrators or your own supporters react, as long as your words don't directly incite violence or law-breaking. To do so would be an unconstitutional “heckler’s veto.”[12] A related issue is whether administrators can require you to have security officers at an event, or impose security fees.

Can my college force me to “dialogue” with pro-Israel or Zionist groups?

No. Just as the First Amendment (and free speech principles) protects your right to express your viewpoint, it also protects your right not to speak – or “dialogue.”[13]SJP chapters and Palestinian students increasingly face pressure from pro-Israel groups and university administrations to engage in activities with pro-Israel groups that are fundamentally opposed to their work for justice and equality for Palestinians. Many students feel that such attempts to “normalize” relationships between Palestine activists and pro-Israel groups is a disingenuous and ineffective attempt to promote reconciliation by presenting Israeli and Palestinian narratives together as “equal and balanced,” without addressing the underlying structural racism, violence, and displacement that Israel commits against the Palestinian people.

Normalization activities can be disempowering, distracting and derailing, and often have the effect of diffusing solidarity work. The First Amendment protects your right not to participate. Keep in mind that the administration or pro-Israel groups may brand you as being hostile or anti-Semitic, so be ready to explain what normalization is about and why it’s problematic.

Can my public college force me to write a “civility” statement?

No. Just as the First Amendment prohibits the government from interfering with your right to voice your opinion, it also prohibits public universities from forcing you to say something you do not wish to say – whether it be the Pledge of Allegiance or a “civility statement” stating that your speech will be “civil.”[14] Keep in mind that though private schools may have more leeway in this area, civility statements may still be challenged.

Can my college require me to attend a “conflict mediation session?”

It depends. Universities sometimes require or suggest that students attend conflict mediation sessions after students engage in mock eviction actions, walk-outs or other forms of expression. These conflict mediation sessions sometimes involve the presence of a rabbi or imam, incorrectly suggesting that student actions supporting Palestinian rights are a religious conflict between Muslims and Jews. You have the right to refuse to attend a dialogue session that is not part of a disciplinary sanction resulting from a disciplinary process. However, you may decide to attend such a session if it is required in lieu of punishment. Contact us if you have a question.

Do I have the right to wear a T-shirt supporting BDS or Palestinians in Gaza?

Yes. Wearing a T-shirt with such a constitutionally-protected message is protected speech activity under the First Amendment.[15]A public university cannot ban viewpoints or ideas because they may be unwelcome or unpopular.

Tips

Talk to your administrators: Build relationships, let them know who you are and what your group is about. The more support you have from your college, the better. Explain that your student group supports equality for all people, and stands against Islamophobia, anti-Semitism and all forms of discrimination.

Ask if your private college supports free speech: Your university should support the free exchange of ideas on this important social and political issue – even if it isn’t required to do so under the First Amendment or state law.

Plan Ahead: Know your college’s rules and policies regarding the type of action you’re considering, and research how your university has responded to similar actions in the past. Be prepared for possible backlash and have a media strategy.

Contact Palestine Legalforlegal or advocacy support, and to report incidents. We may be able to provide you with additional resources and connect you with organizational support or other lawyers in your area who understand the political and legal issues, if necessary.

Footnotes

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”).

[2] Widmar v. Vincent,454 U.S. 263, 268-269 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”).

[3] California Education Code § 94367(a) (“No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.”).

[8] Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”)

[14] Barnette, 319 U.S. at 624 (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”).

Disclaimer: Do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.

The Basics

Defamation includes both libel (written defamation) and slander (spoken defamation).

To be defamatory, a statement must be an assertion of fact (as opposed to opinion), communicated to other people, that is capable of being proven false.

Defamation is not a crime, but someone who believes they were defamed can sue the person who made the allegedly false statement.

Statements of opinion or hyperbole are protected by the First Amendment. Also, the individual alleging defamation has to show he or she suffered harm to their reputation (e.g. loss of a job, income). If the only damage is hurt feelings, a defamation lawsuit is unlikely to be successful.

Also, It’s even harder for public figures and “limited-purpose public figures” (experts on a certain topic, like a professor who has been on television) to win a defamation case. A public figure or “limited-purpose public figure” would not only have to prove that the statement made was false, but that person making it knew or should’ve known that the statement was false when made. Statements made on matters of public concern, for example Israel’s occupation of Palestine, also receive higher First Amendment protection.

This area of law varies from state to state, but the bottom line is, bringing a defamation suit is often difficult, costly and time-consuming. There may be better strategies to counter false statements than bringing a lawsuit. That said, if you believe you’ve been defamed or have received a ‘cease and desist’ letter alleging that you defamed someone, contact us and we can explore legal as well as non-legal options.

Frequently Asked Questions

What if I criticize a student representative for going on an Israel lobby-sponsored tour? Could that be considered libel, slander or defamation?

See our Defamation Basics. Opinions are protected by the First Amendment. To win a case for defamation, the person suing must show that you made a falsestatement of fact and that he or she suffered harm to their reputation (loss of job, income, etc.) because of the statement. Stating your opposition to the actions of an individual, or expressing your view that their actions violate certain rules, is an opinion that cannot be the basis for a defamation suit against you.

What if a pro-Israel organization has made up lies about my SJP? Can I sue for defamation?

Even if the statements were defamatory, individuals cannot generally sue on behalf of a group or a class of people for defamation. However, an exception to this rule may exist for groups of 25 or fewer people. Defamation law varies from state to state, so contact us if you would like to discuss your particular case. There may also be other less costly and risky ways of challenging such lies.

Is my college newspaper obligated to publish our response to an article that unfairly characterizes an SJP action or event?

No. Even though it’s unfair and possibly bad journalism to exclude certain perspectives, you don’t have the legal right to force your college paper to publish your voice.[1] That said, you should make a strong request to publish a response, and try to organize an editorial board meeting so that you can help them understand the issue. Sometimes, students are only exposed to the dominant media narrative and don’t understand the critical issues at stake. If they get the facts wrong, ask for a correction. See the Student Media Handbook for more tips on how to effectively communicate your message through the media.

CASE STUDY:Responding to False Accusations in the Media

In March 2014, during a divestment campaign at the University of Michigan, the neoconservative Washington Free Beacon published an article titled “BDS Leader Posts ‘Overtly Threatening’ Photo to Facebook.” The article shows a member of the University of Michigan’s Palestine solidarity group Students Allied for Freedom and Equality, standing in a kitchen wearing a keffiyeh and poking a pineapple with a knife.

The article quotes Israel advocate Kenneth Marcus, a leader of efforts to undermine Palestine activism on campuses, who stated that the photograph is “overtly threatening” to opponents of the divestment campaign and could contribute to the culture of fear within the University’s pro-Israel community. Marcus connected the student’s use of a pineapple to a French comedian who associated pineapple with Holocaust denial and suggested that it was the closest one can get to the sabra fruit (purportedly associated with Israel) in Michigan grocery stores. In the wake of the article, the student’s social media accounts were flooded with hateful and racist messages.

The student responded by writing a powerful op-ed in the Michigan Daily, denying these claims, and explaining how he jokingly posted the photo on Facebook before an intramural basketball game against a team of friends months before. The other team was named “Ananas,” the Arabic word for pineapple. The op-ed also explained how such politically motivated and bigoted attacks on pro-BDS students “distract from our real message — that complicity in Israel’s human rights violations has to stop — and paint us as motivated by anti-Semitism.”

Though Facebook posts such as this student’s are protected speech under the First Amendment, colleges are increasingly less tolerant of rhetoric—even when intended as a joke or general statement—which might be construed as a threat of violence. Keep this in mind when engaging in humor or expression, or sharing images that invoke violent imagery to minimize the possibility that your intentions may be misrepresented.

Disclaimer: Do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.

Background

Often, activists supporting Palestinian human rights are accused of “hate speech” and “anti-Semitism” as a way to divert attention from criticism of Israel’s human rights abuses. It’s a good idea to be prepared to respond to these kinds of accusations by publicly posting your anti-oppression principles, and informing people that criticism of the Israeli government is not criticism of Jewish people or the Jewish faith. Consider meeting with administrators to make this distinction clear to them.

Title VI of the Civil Rights Act of 1964 prohibits discrimination and harassment on the basis of race, color or national origin at educational institutions receiving federal funding. If a school is found to have discriminated against or tolerated discrimination against a protected group, it can lose federal funding.

While speech is generally protected, verbal conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” is considered harassment, and is not protected as free speech. If you think you are a victim of this type of harassment, you should seek counseling and legal support right away. Your school is obligated to protect you.

Some groups have filed Title VI complaints alleging that Palestine activism amounts to discrimination or harassment against Jewish students. These complaints have so far been dismissed by the Department of Education (DOE), which has made clear that expression of political viewpoints, standing alone, is not “harassment” and does not create a hostile educational environment under Title VI.

Even speech that is considered rude or offensive is protected First Amendment activity. Many anti-oppression activists and critical race scholars argue that racist speech should be prohibited because of the grave injuries that it inflicts on oppressed communities. This argument emphasizes that hateful speech has especially harmful effects when expressed by privileged people at the top of race and gender hierarchies and used as a tool to further subjugate oppressed groups.[1]

But the law does not recognize this distinction. This means that when people on campus express racist, anti-Semitic, anti-Arab, or anti-Muslim speech, public universities cannot punish it, unless the speech reaches the legal definition of harassment or incitement. Administrators can condemn hate speech, and work to promote more anti-racist speech. Private universities may have stricter policies restricting “hate speech.”

The Basics

You have the First Amendment right to criticize Israel or any other country, including the United States.

Allegations that expression criticizing the state of Israel is harassment or intimidation that targets and creates a hostile educational environment for Jewish students on campus on the basis of race or national origin have been soundly rejected by the U.S. DOE’s Office for Civil Rights.[2]

Frequently Asked Questions

What can I do about emails, text messages and Facebook posts calling me terrible names and even threatening me because I support Palestinian rights?

Yes. Document this. Take screen shots and save the messages. Depending on the level of harassment, you may wish to report this to your college. If you are being physically threatened and feel unsafe, consider reporting to law enforcement authorities like campus or local police. They may be required to investigate such threats. But keep in mind that hate speech can’t be punished by public universities or law enforcement unless it reaches the level of legal “harassment.” If you are being bullied because you support Palestinian rights, contact Palestine Legal. Many colleges have anti-bullying policies as well.

Groups are posting negative things about me on the internet that aren’t true. What can I do about this?

[2] A federal judge has also dismissed a lawsuit making similar allegations. See Felber v. Yudof, 851 F.Supp.2d 1182, 1188 (N.D. Cal. 2011) (“A very substantial portion of the conduct to which [the complainants] object [i.e., speech critical of Israel] represents pure political speech and expressive conduct, in a public setting, regarding matters of public concern, which is entitled to special protection under the First Amendment.”).

Disclaimer: Do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.

The Basics

Content posted to social media and the internet is considered speech activity, so all the same principles described above still apply.

Be informed about using copyrighted or trademarked materials.

If you are a victim of online hate speech or bullying, document it, report it to appropriate authorities and call Palestine Legal for tips on reputation defense.

Tips

Be thoughtful in your postings; often jokes and commentary students thought were private have later been taken out of context and disseminated by opposition groups.

Make sure you only post information about yourself or your group that you are comfortable with your college, classmates and potential employers seeing. Even if you have high privacy settings, information may not be as private as you think.

If you are being attacked online because of your support for Palestinian rights, contact Palestine Legal.

Copyright Law, Fair Use & Parody

Under the fair use doctrine, you can use copyrighted work (images, songs, articles) for a limited and “transformative” purpose, such as criticism, comment and parody.

So what’s “transformative” use for the purposes of the fair use doctrine? The definition can be confusing, but fair use generally falls into two categories: 1) criticism and commentary and 2) parody. Criticism and commentary may include using a few lines from an article you are quoting. Parody must poke fun at the author or work and offer some kind of critique of the work. There are no hard lines here, so contact Palestine Legal if you have a question or are threatened with copyright infringement.

Frequently Asked Questions

Can my college read my Twitter posts or Facebook posts?

Your college is able to read anything you hold out to the public as well as activity taking place on university servers. (This could include .edu email addresses, college computers and college wireless networks.) In addition to Twitter and Facebook posts, keep in mind that emails you’ve sent can always be forwarded by the receiver (even if you believed them to be private), and your college, or other authorities may be able to read them.

Can my college punish me for something I posted on my personal Facebook page or Twitter account?

It depends. Online speech, even if made off campus, may be the subject of valid sanctions where student conduct violates narrowly tailored ethical or professional program rules.[1] In other words, it depends on what you say. Punishing students for posts that support Palestinian rights or are critical of Israel or the Israeli army, for example, would likely violate the First Amendment at a public college and free speech principles at a private college. Different ethical and employment rules may apply to student government representatives, faculty and staff.

Can my university prevent our group from using the university’s logo in our divestment campaign?

It depends. It could be a violation of trademark law to use your university’s logo where there’s a likelihood that viewers will believe your university endorsed an action which it hasn’t. However, if you are using the trademark for the purpose of parody, artistic, or political speech, you may have a First Amendment right to use the trademark. Trademark law varies from state to state, so if you have a question about this or have been ordered to ‘cease and desist’ from using a trademark, call Palestine Legal.

Can I use Caterpillar or another company’s logo on our website calling for divestment?

Usually yes. The key issue in trademark infringement cases is the likelihood of consumer confusion. This test differs in jurisdictions, but as long as there is little chance that someone viewing your website will actually mistake it for Caterpillar’s website, or an official Caterpillar communication, you should be fine.

What about using an official government seal on a flier or website?

There may be other laws that prohibit using official government seals, so you may want to avoid using a city seal or a university logo on a mock eviction flier – you don’t need it to get your message across and it could lead to a trademark suit or even criminal charges.

What if I get a ‘cease and desist’ letter from a company telling me I need to take down the logo or they’ll sue?

Contact Palestine Legal immediately. We can help you determine whether there is a potential violation, help you respond adequately, and make sure you’re represented if necessary. If you’re worried you may be in violation, you can take the image down, and put it back up after you’ve consulted with an attorney.

Can a record company force me to take down a YouTube posting of our flash mob where we use a popular song and change the words?

It depends. Modifying or altering artistic works without the express permission of the author could be an infringement of the copyright owner’s rights unless the modification is considered “fair use” (see next question), and you could be sued. If you are in doubt, Creative Commons has links to sites that allow people to use songs for free without fear of infringement.

Can I use an artist’s song in a parody video urging them to not play in Israel?

It depends. We believe this would fall under the legal definition of parody under the Fair Use doctrine if your video is making fun of or criticizing the artist whose work you are using. This doesn’t mean you or YouTube won’t receive legal threats to take the video down. Contact Palestine Legal if this happens.

In June 2013, activists made a parody of Alicia Keys’ “Girl on Fire” video calling on Keys to not tour in Israel to protest Israel’s human rights abuses. YouTube removed the video after receiving copyright infringement threats from Alicia Keys. However, the activists’ video, which used Alicia Keys’ “Girl on Fire” song, is a parody that includes themes of a girl “on fire filled with catastrophe” who is “not backing down.” The activists’ video contains images of Palestinian women and girls resisting the Israeli occupation, as well as clips of Israel bombing Palestinian cities. The purpose of this parody was to draw public attention to the urgent issue of apartheid and other Israeli human rights abuses, and called on Keys to support the BDS movement. While the video contains a few short clips of Keys’ original video, these were sufficiently transformed for the purposes of criticism and commentary. An activist later re-posted the video, which can now be found here.

If you’ve been accused of copyright infringement, call Palestine Legal to see if you have a basis for challenging a removal or infringement accusation.[2]

Footnotes

[1]Tatro v. University of Minnesota, 816 N.W.2d 509 (2012) (University did not violate free speech rights when it sanctioned mortuary science student for blogging about “playing” with cadaver, taking her “aggression” out on it, and keeping a “[l]ock of hair” in her pocket, among other things in violation of program rules prohibiting disrespectful conversational language outside the laboratory about cadaver dissection as well as internet blogging about cadaver dissection or anatomy lab).

[2]In a similar incident in 2011, YouTube removed a Greenpeace parody video of a Volkswagon ‘Star Wars’ themed commercial after LucasFilms demanded the video be taken down. Greenpeace challenged the takedown. After two weeks of suspension, YouTube put the video back up.

Disclaimer: Do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.

The Basics

Your college must allow your group to meet and hold events on the same basis as it does other groups.

You have a constitutional right to hold protests and demonstrations at your public university. But your college can regulate the time, place and manner of the protest so that it doesn’t interfere with college activities, health or safety.

Most private university according to its rules.

Your college cannot stop you from inviting a speaker on the basis that some find the speaker’s views “controversial.”

Your public college cannot charge you security fees because it believes your speaker is “controversial.”

Differential Treatment

You should not be discriminated against by your university because your message supports Palestinian freedom. If your public university isn’t enforcing a rule for other clubs, they can’t enforce it against you and private should be challenged for discriminatory enforcement. The First Amendment and free speech principles require that rules be viewpoint neutral. This means that public colleges cannot apply the rules differently, or otherwise treat you differently because they don't like your message.

Unfortunately we still see this a lot: student groups supporting Palestinian rights are punished for distributing mock eviction flyers in dorms when other groups flyer in dorms all the time; SJPs are told they can’t have a dabka event in the same area where other cultural dances or performances are allowed; or their club banners are taken down because some students and alumni disagree with the message. These kinds of actions, if taken by administrators at a public university, violate the First Amendment and possibly discrimination laws. If done by administrators at a private university, they violate free speech principles (and possibly state laws). If this happens to you or your student group, documentit and call Palestine Legal.

However, the government (which includes public universities) may place reasonable restrictions on the time, place, and manner of your speech activities to minimize disruption. Time, place, and manner regulations for your school can usually be found in the student handbook, or other policies posted on-line. If time, place, manner regulations prevent you from getting your message to your intended audience or if they are applied differently to you than to others, they may be unconstitutional.

Civil Disobedience

If you’re planning civil disobedience – like having a “sit in” mic-check or lying down in the street to get your message across -- be aware of the practical consequences of your actions before you begin.

Be aware of criminal statutes (state and local ordinances) as well university rules.

Frequently Asked Questions

Can public universities restrict protests?

You should be allowed to protest in outdoor plazas and other spaces open to the public on your public college or university campus. However, your public university can place reasonable “time, place or manner” restrictions on your protest so that it doesn’t unduly interfere with classes or block walkways or entrances to buildings. But these restrictions must apply equally to all groups, regardless of their political viewpoint. Your campus can’t place additional restrictions on your group because it supports Palestinian rights.

CASE STUDY:Mock Checkpoints on Campus

A mock checkpoint – where students engage in street theater portraying Palestinians attempting to cross a military checkpoint – on a public university campus is protected First Amendment activity. However, the university can restrict where you hold it (for example, so it doesn’t block passageways or entrances/exits), when you hold it, and how you hold it (for example, no realistic toy guns) – as long as these restrictions apply to all groups regardless of viewpoint. Handing out flyers educating students on Israeli checkpoints is also protected First Amendment activity. If you’re thinking about holding a mock checkpoint action or if you have problems with your mock checkpoint events, contact us for tips and best practices.

Can colleges restrict counter-protesters?

A public university can enforce reasonable regulations on how students protest, as long as they are not overly restrictive and applied evenly to all groups. This means that your college can require counter protestors to keep a certain distance from another group’s event in the interest of public safety, and balancing both groups’ speech rights. But it must be a reasonable distance that still allows the counter-protestors to express their message. For example, your college may not require counter-protestors to demonstrate in a different place entirely, or may not make a rule saying “no signs.”

If you have a question about whether your college’s enforcement of counter-protest rules violates your rights, contact us.

CASE STUDY:Disrupting Speech and Criminal Prosecutions

In February 2010, several students at the University of California Irvine protested a speech by Israeli Ambassador Michael Oren. The students stood up at separate times and read short statements of several seconds in duration, then voluntarily left the room escorted by security. After the fourth interruption, Oren left the stage for several minutes, returned, and continued with his speech.

The state prosecutor charged the students – dubbed the Irvine 11 – with violating a California law that makes it a misdemeanor to disrupt a public meeting such that it “substantially impairs” the meeting’s function. Though we believe the misdemeanor convictions the students received violated their First Amendment rights, the California Court of Appeals ruled otherwise. This means that if you are in California, or another state with similar statutes, like New York or Michigan, you could be criminally prosecuted for disrupting another’s speech.

Contact us if you are considering this type of action so we can analyze the laws in your state. Even if your state does not have a statute on disrupting a public meeting, keep in mind that you could still be charged for “disorderly conduct,” depending on your state. That said, while many student groups supporting Palestinian rights have faced university disciplinary proceedings for such disruptions, criminal prosecutions like the Irvine 11 are exceptional.

Can my college restrict my group to a “free speech zone?”

It depends. Your public college can restrict your tabling event, protest or mock apartheid wall to a certain space—or keep you from a space that’s otherwise open—but only based on reasonable “time, place, and manner” regulations. This means that restrictions must be reasonably related to legitimate goals (such as reducing an identifiable security risk) and your college must not prevent substantially more expression than is necessary to achieve those goals. The restrictions must also allow you to have a reasonable opportunity to effectively communicate your message to your intended audience. This means, for example, the free speech zone cannot be too small or isolated. Finally, the restrictions must not be motivated by your message. Some free speech zones have been challenged in court and ruled unconstitutional. If your college’s policy is limiting your ability to protest and organize, contact Palestine Legal for advice. If your private college is restricting your speech unreasonably or in a discriminatory way, you may be able to challenge this as well.

Can my college refuse to recognize our Students for Justice in Palestine club because they claim SJP is “controversial?”

No. The Supreme Court has held thata public university’s refusal to recognize a student group based on an assumed relationship with a national group whose politics it disagreed with interfered with students’ fundamental right to free association.[1] What this means is that a pubic college can’t stop the formation of your SJP based on an opinion it may have about other SJP chapters. To do so is guilt by association and an impermissible denial of First Amendment rights. Even though this ruling applies to public universities, if you are at a private college, you can still challenge your administration’s perceptions by explaining to your administration what your group is about, and argue that free speech principles that your college aspires to require that your student group be recognized as SJP. (Students trying to form an SJP at one private college did this and won.) Contact us if you have a question about this.

Can my college charge my club security costs because they say, for example, our speaker is “controversial?”

No. Public university policies that charge fees on the basis of anticipated audience reaction violate the constitution.[2] Imposing security fees on expressive activity is a restriction of First Amendment rights. Even at private schools, assessing security fees based on the potential hostile reaction of protestors threatens free speech principles because it imposes a cost on expressive conduct. Contacts us if your student group has been charged a security fee and you would like to challenge it.

Can my college impose the presence of security officers at our events over our objections?

Maybe – call us. Because colleges may be liable for injuries on campus, if your college judges that there is a security risk at your event, it may be legally justified in having security officers present. But officials must use objective criteria to determine that there is a traffic flow problem or security risk, and cannot merely require security because the content of your event seems “controversial.” Keep in mind that even if having security officers present appears legally sound, it can still be problematic, and an attorney may be able to help you challenge this. See our section on Differential Treatment.

What can I do if campus police is always hovering over our events and making students feel uncomfortable approaching our mock apartheid wall or table?

Document this by taking pictures, noting the times, dates, number of officers and how close they are standing. Set up a meeting with your college administration and explain how the presence of police is deterring students from approaching your wall or table. If your administration refuses to listen, call us.

Can my school prevent our club from inviting Ali Abunimah, Remi Kenazi or other people supportive of Palestinian rights to speak at my college because they say he or she is “controversial?”

No. The Supreme Court has been very clear that an important functionof free speech is to provoke and invite dispute.[3] This means that the First Amendment and free speech principles protect the right even to controversial speech and speakers who take positions that may arouse strong feelings, passions, and even hostility.[4]

Can my school force me to present “the other side” if I invite Omar Barghouti, Judith Butler, or another speaker to talk about BDS?

No. Your college cannot force you to “dialogue,” present “the other side” or engage in other normalization attempts. Just like LGBTQ groups don’t have to present the “other side” to marriage equality, and environmental groups don’t have to present the “other side” to climate change, and Hillel does not have invite pro-BDS speakers, it is your right to decline to invite any speaker whose views you do not care to present.

Can my college withhold funding for an SJP event because they say the speaker is controversial?

No. The Supreme Court has been very clear that an important functionof free speech is to provoke and invite dispute.[5] This means that at a public college, both the administration and the student government cannot discriminate in funding based on the content of an event.

What can I do if my college is making it difficult to hold events (like by taking too much time to approve events, constantly losing room reservations or giving other excuses)?

The First Amendment and free speech principles prohibit colleges from suppressing speech on the basis of viewpoint. This includes both outright censorship, as well as more indirect methods that make it difficult for SJPs and other clubs supporting Palestinian rights to hold events. If your college is engaging in this kind of behavior, document it. Make a note of how long it took to get approval for each event. Talk to other groups and document how long it took for them to get approval. If these problems are only happening to your group, it is a sign of discriminatory treatment, possibly because of the viewpoint your group promotes. See our tips below on how to document university oppression of your SJP. And definitely contact us so we can help you assert your rights!

Footnotes

[1] Healy v. James, 408 U.S. 169 (1972) (State College’s refusal to recognize local chapter of Students for a Democratic Society [SDS] because college president concluded the National SDS had a philosophy of disruption and violence, violated students’ associational rights under the First Amendment.).

Disclaimer: Do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.